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Himachal Pradesh High Court · body

2016 DIGILAW 2749 (HP)

Rajesh Kumar v. State of H. P.

2016-12-28

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The accused/revisionist herein along with other co-accused Anil Kumar and Inder Singh is alleged to commit an offence punishable under Section 61(1)(a) of the Punjab Excise Act, as applicable to the State of H.P. (hereinafter referred to as the Act). On conclusion of the trial to which they stood subjected to, the learned trial Court recorded findings of conviction against petitioner herein Rajesh Kumar and qua co-accused Anil Kumar for theirs committing an offence under the afore referred penal provisions, whereas it acquitted co-accused Inder Singh. The learned trial Court proceeded to hence sentence them to undergo rigorous imprisonment for one year each for commission of an offence punishable under Section 61(1)(a) of the Act besides sentenced them to pay a fine of Rs.5000/- each. Accused/convicts Anil Kumar and Rajesh Kumar preferred separate appeals before the learned Sessions Judge, Hamirpur against the judgment of conviction and consequent sentences recorded against them by the learned trial Court whereupon, the Appellate Court rendered a judgment in affirmation to the verdict of conviction and sentence pronounced by the learned trial Court against accused/petitioner herein Rajesh Kumar. However, the learned Appellate court allowed the appeal preferred there before by accused Anil Kumar whereby it set aside the conviction and sentence imposed upon him by the learned trial Court. Convict Rajesh Kumar, the petitioner herein has been hence led to institute the instant revision petition there from before this Court whereby he seeks the setting aside of the findings of conviction and consequent sentences concurrently imposed upon him by both the learned Courts below. 2. The facts relevant to decide the instant case are that on 27th February, 2006 at about 10.30 p.m., rapat Ex.PW6/A was entered at Police Station Barsar to the effect that an information has been received at VHF set that vehicle No. 4754 had fled away after road accident from the spot and that Nakabandi should be laid. So, ASI Karam Singh left for the spot alongwith other police officials. While the police party reached near Village Jayoli Devi at about 1.00 a.m., a Tata Sumo No. HP-01B-0217 came from Dandru side in rash speed and it was intercepted. Rajesh Kumar, accused-petitioner herein was driving the vehicle and one person, namely, Anil Kumar ran away from the spot. So, ASI Karam Singh left for the spot alongwith other police officials. While the police party reached near Village Jayoli Devi at about 1.00 a.m., a Tata Sumo No. HP-01B-0217 came from Dandru side in rash speed and it was intercepted. Rajesh Kumar, accused-petitioner herein was driving the vehicle and one person, namely, Anil Kumar ran away from the spot. The vehicle was checked and on checking, 75 cartons of country liquor “Lal Quila” were found in it without any permit or licence. Out of 3 cartons, one bottle from each carton was separated and the bottles were sealed with seal “K” and seal impression were also taken separately and the case property, Ex. P-1 to P-897, was taken in possession vide recovery memo Ex.PW2/A. The documents of the vehicle were also taken into possession vide separate seizure memo. The Investigating Officer Karam Singh, ASI prepared the site plan Ex.PW6/B and Rukka, Ex.PW1/A was sent to the Police Station, on the basis of which FIR was registered against the accused in the police station concerned. Thereafter, the Investigating Officer concerned completed the codel formalities. 3. On conclusion of the investigation, into the offence, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed before the learned trial Court. 4. The accused were charged by the learned trial Court for theirs committing an offence punishable under Sections 61(1)(a) of the Act. In proof of the prosecution case, the prosecution examined 6 witnesses. On conclusion of recording of the prosecution evidence, the statements of the accused/convicts under Section 313 of the Code of Criminal Procedure were recorded by the learned trial Court in which the accused claimed innocence and pleaded false implication in the case. However, they examined one witness in their defence. 5. On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction upon accused Anil Kumar and Rajesh Kumar, whereas it acquitted accused Inder Singh. However, they examined one witness in their defence. 5. On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction upon accused Anil Kumar and Rajesh Kumar, whereas it acquitted accused Inder Singh. In appeals preferred by accused Anil Kumar and Rajesh Kumar, before the learned Sessions Judge, Hamirpur, the latter allowed the appeal preferred there before by accused Anil Kumar, whereby he set aside the conviction besides consequent sentence imposed upon him by the learned trial Court, whereas, it dismissed the appeal preferred there before by accused Rajesh Kumar whereby it affirmed the conviction and consequent sentence imposed upon him by the learned trial Court. 6. The accused/convict/petitioner herein is aggrieved by the concurrent judgments of conviction recorded upon him by both the learned courts below. The learned counsel for the accused/convict/petitioner herein has concertedly and vigorously contended qua the concurrent findings of conviction recorded upon him by both the learned Courts below standing not based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation by them of the material on record. Hence, he contends qua the findings of conviction being reversed by this Court in the exercise of its revisional jurisdiction and theirs being replaced by findings of acquittal. 7. On the other hand, the learned Deputy Advocate General has with considerable force and vigour, contended qua the findings of conviction recorded by both the Courts below standing based on a mature and balanced appreciation by them of evidence on record and theirs not necessitating any interference, rather theirs meriting vindication. 8. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 9. 75 card board cartons holding there within 900 bottles stood recovered under recovery memo Ex.PW2/A. The recovery of the aforesaid cache of liquor stood effectuated from vehicle bearing No. HP-1B-0217 whereon the co-accused were occupants. A perusal of Ex.PW2/A makes a disclosure qua only three bottles from amongst liquor bottles held in 75 cartons standing sealed with seal impression bearing english alphabet “K” where after, they stood dispatched to the CTL concerned for obtaining there from its apposite opinion thereupon. On the CTL concerned receiving three bottles of liquor, it, on holding their contents to examination purveyed an affirmative opinion qua the contents held there within being liquor. On the CTL concerned receiving three bottles of liquor, it, on holding their contents to examination purveyed an affirmative opinion qua the contents held there within being liquor. 10. All the prosecution witnesses, who are officials of the police department, in their respective testifications occurring in their respective examination-in-chief echoed a version qua the manifestations occurring in Ex.PW2/A unbereft of any stain of any intra se contradictions besides their respective testifications occurring in their respective examinations-in-chief are also unbereft of any taint of any inter se contradictions vis-à-vis their versions occurring in their respective cross-examinations, whereupon credence stood tenably imputed to their respective versions qua the effectuation of recovery of liquor bottles under recovery memo Ex.PW2/A. 11. The learned counsel appearing for the petitioner/revisionist has contended before this Court qua with the CTL concerned recording an affirmative opinion only upon three bottles of liquor collected from three card board cartons thereupon its apposite opinion recorded qua three bottles not being amenable for a formidable construction standing placed by this Court qua it also holding connectivity vis-a-vis the other bottles held in the cache of bottles, recovered under memo Ex.PW2/A also there within holding liquor. However, the aforesaid submission addressed here before by the learned counsel appearing for the petitioner qua lack of collection of samples from all bottles, recovery whereof stood effectuated under recovery memo Ex.PW2/A rather with the Investigating Officer concerned from amongst the entire cache of bottles recovered there under sending only three bottles for analysis to the CTL, Kandaghat, whereupon an affirmative opinion stood recorded thereupon by it, hence, rendering the apposite opinion recorded thereto by the CTL concerned to remain unconnected qua other bottles recovered under memo Ex.PW2/A, does not hold any tenacity, significantly, when both PW-1 and PW-2 in their respective examinations-in-chief firmly echoed therein qua the entire cache of bottles, recovery whereof stood effectuated under recovery memo Ex.PW2/A, holding liquor there within, whereas, despite the learned defence counsel while holding them to cross-examination, though, hence stood enjoined to by putting apposite suggestions in respect thereto make a concert for negating the efficacy of the aforesaid echoings made respectively in their examinations-in-chief by PW-1 and PW-2, contrarily, when no apposite suggestion stood put to them by the learned defence counsel while his holding them to cross-examination for hence negating the effect of the aforesaid communications occurring in the examinations-in-chief of PW-1 and PW-2, hence does not purvey any leverage to the learned counsel for the petitioner to contend qua only three bottles holding liquor there within. 12. The learned counsel appearing for the petitioner has contended with much vigour before this Court qua with both PW-1 and PW-2 in their respective cross-examinations loudly communicating therein qua except a few gunny bags holding there within bottles, the other gunny bags not holding any description qua the FIR number apposite to the extant case whereupon he contends qua the prosecution not succeeding in firmly establishing qua the entire cache of liquor bottles, recovery whereof purportedly stood effectuated in the manner borne in Ex.PW2/A standing firmly connected by the prosecution to stand recovered from vehicle bearing No. HP-01B-0217, whereon the accused at the relevant time stood borne. The aforesaid submission addressed here before by the learned counsel appearing for the petitioner also does not hold any vigour or tenacity, significantly, when the apposite recovery memo embodied in Ex.PW2/A does not pronounce qua the Investigating Officer concerned while making the relevant seizure at the relevant site of occurrence, his embossing on the card board cartons, the FIR number apposite to the extant case. Also with the Investigating Officer concerned in his examination-in-chief not making any echoings therein qua his, on all the card board cartons holding there within liquor bottles, making any mark thereon significatory of the FIR number apposite to the extant case also does constrain this Court to conclude with firmness qua the non designation of the FIR number on the card board cartons holding there within liquor bottles not rendering the prosecution case qua the efficacy of recitals borne on Ex.PW2/A, contents whereof stood efficaciously proven by the witnesses thereto hence suffering any mishap. Also the testification of the marginal witnesses to Ex.PW2/A omit to make any communications therein qua either, at the relevant site of occurrence, the Investigating Officer concerned embossing on cardboard cartons the FIR number apposite to the extant case besides in their respective testifications they also omit to communicate qua the IO thereafter at the police station concerned on his removing thereto the case property from the site of occurrence his thereat on all the card board cartons which there within held liquor bottles designating thereon the apposite FIR number nor also with the learned defence counsel while holding to cross-examination the marginal witnesses to Ex.PW2/A who in their respective examinations-in-chief echoed qua the efficacy of the contents borne on Ex.PW2/A omitting to purvey any apposite suggestion to them qua lack of designation thereon of the FIR number apposite to the extant case eroding the factum of the recitals borne on Ex.PW2/A besides with the accused during the course of his answering question in the proceedings drawn under Section 313 of the Cr.P.C. not unveiling any defence therein qua the lack of designation by the Investigating Officer concerned of the apposite FIR number on the cardboard cartons which there within hold liquor bottles holding the apposite exclulpatory effect whereupon it is apt to conclude qua the address made here before by the learned counsel for the petitioner not standing embedded on the relevant evidentiary strata. 13. Be that as it may, the Investigating Officer concerned as unveiled by Ex.PW2/A proceeded to only emboss seal impression holding english alphabet “K” only on three bottles of liquor from amongst 900 bottles of liquor carried in 75 cardboard cartons. 13. Be that as it may, the Investigating Officer concerned as unveiled by Ex.PW2/A proceeded to only emboss seal impression holding english alphabet “K” only on three bottles of liquor from amongst 900 bottles of liquor carried in 75 cardboard cartons. The Investigating Officer concerned in making the aforesaid omission to emboss seal impressions on all the card board cartons purportedly holding there within holding liquor bottles has afforded capitalization to the defence to contend qua the reflections borne in eX.PW2/A not holding any efficacy. The Investigating Officer concerned was under a paramount enjoined duty to for obviating any inference standing erected qua the relevant cache of liquor bottles recovered under Ex.PW2/A not holding any dis-concurrence vis-à-vis portrayals embodied in Ex.PW2/A at the apposite stage qua production of the case property in Court whereat alone the apposite connectivity inter se the reflections occurring in Ex.PW2/A vis-à-vis the relevant case property would emanate, to imperatively emboss at the site of occurrence, seal impressions on all the cardboard cartons holding there within liquor bottles, conspicuously also when the aforesaid embossing by the Investigating Officer at the site of occurrence of seal impressions on all the cardboard cartons holding there within liquor bottles would negate any concert of the Investigating Officer concerned to either introduce liquor bottles there within also would preclude him to tamper with the case property. However, the Investigating Officer in making the aforesaid omissions has afforded open leeway besides latitude to this Court to conclude qua the liquor bottles held in the cardboard cartons/gunny bags at the apposite stage contemporaneous to their production in Court standing introduced there within also it facilitates an inference from this Court qua the apposite recoveries effectuated under memo Ex.PW2/A not thereat holding the apposite connectivity vis-a-vis the recovery of a cache of 900 bottles from vehicle bearing No. HP-01B-0217 whereon the accused were co-occupants whereupon the charge capsizes. What aggravates the aforesaid inference recorded by this Court qua the Investigating Officer concerned introducing liquor bottles in the cardboard cartons also his tampering with the case property at the stage contemporaneous to its production in Court, stands marshalled by the factum of the SHO concenred of the Police Station concerned proceeding to order for the transfer of liquor bottles, bottles whereof initially, at the time of their seizure stood held in cardboard cartons onto gunny bags, order whereof remained unpreceded by an apposite order standing obtained from the Judicial Magistrate concerned, also the reason assigned by the Investigating Officer concerned for making the aforesaid transfer of liquor bottles initially held in cardboard cartons onto gunny bags is qua the cardboard cartons suffering decay arising from dampness. The evident deteriorated condition of the cardboard cartons also bespeaks of the gross mis-management besides ill-management of the case property in the police station concerned also thereupon it is befitting to conclude qua the case property as stood produced in Court, its thereat not holding the apposite connectivity vis-a-vis the case property as stood recovered under recovery memo Ex.PW2/A. 14. For the reasons which have been recorded hereinabove, this Court holds that both the learned Courts below have not appraised the entire evidence on record in a wholesome and harmonious manner apart there from the analysis of the material on record by both the learned Courts suffer from a gross perversity or absurdity of mis-appreciation and non appreciation of evidence on record. 15. Consequently, the instant petition is allowed and the judgments of both the learned Courts below are set aside. In sequel, accused/petitioner Rajesh Kumar is acquitted for the offence punishable under Section 61(1)(a) of the Act. Fine amount, if any, deposited by him be refunded to him forthwith. Records be sent back forthwith.